Power Projects International Pty Ltd v The Australian Workers' Union
[2011] FWA 302
•17 JANUARY 2011
[2011] FWA 302 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Power Projects International Pty Ltd
v
The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2011/3015)
Electrical power industry
COMMISSIONER CAMBRIDGE | SYDNEY, 17 JANUARY 2011 |
Application for an Order to stop industrial action - basis of application related to Appeal proceedings - s.606 (3) - no stay available - industrial action is protected unless and until Appeal determines otherwise - application dismissed.
[1] This is the edited text of an extempore Decision made in transcript during proceedings held on 14 January 2011.
[2] This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that Fair Work Australia (FWA) make an Order that industrial action that is anticipated to commence on Monday, 17 January 2011, be stopped and not occur.
[3] Section 418 is in the following terms:
418 FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, FWA does not have to specify the particular industrial action.
(4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot. [Emphasis added]
[4] The application has been made by Power Projects International Pty Ltd (PPI). The application seeks an Order(s) against the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), (the AMWU) and The Australian Workers' Union (the AWU), collectively referred to as “the Unions”.
[5] The Unions obtained Protected Action Ballot Orders by way of Decisions of Harrison DP made on 15 and 16 December 2010 respectively. The anticipated industrial action that is the subject of this matter arises from notifications made by the Unions as a consequence of the successful completion of the ballot processes that followed the Decisions made by Harrison DP. The industrial action is prima facie protected industrial action authorised by the Protected Action Ballot Orders made by Harrison DP.
[6] On or about 23 December 2010 the Australian Industry Group (AIG) acting on behalf of PPI, filed Notices of Appeal pursuant to s.604 of the Act against the Decisions of Harrison DP which had earlier granted the Unions the Protected Action Ballot Orders.
[7] Subsection 606 (3) of the Act is in the following terms:
“ (3) This section does not apply in relation to a decision to make a protected action ballot order.”
[8] The Appeals are scheduled for Hearing before a Full Bench of FWA on Friday, 21 January 2011. Essentially, if the Appeals are successful and the Decisions and Orders made by Harrison DP are quashed, the Unions would be unable to take protected industrial action.
[9] The application that is the subject of these proceedings, challenges the industrial action anticipated to commence on Monday, 17 January 2011. In brief, the challenge asserts that the common requirements that apply for industrial action to be protected industrial action have not been satisfied. It has been acknowledged by the applicant that the basis upon which it is asserted that the common requirements for the industrial action to be protected and which have not been satisfied, are issues in common with the basis for the Appeals that are to be heard by a Full Bench of FWA on 21 January 2011.
[10] Consequently the subject matter of these proceedings is in effect, the same subject matter that is to be determined in the proceedings before the Full Bench. It would therefore appear that any determination of this application may be improper to the extent that the determination of the issues that are under examination are matters clearly the subject of proceedings scheduled before a Full Bench of FWA.
[11] In addition, it would seem that the provisions of subsection 606 (3) of the Act would in effect, be negated if an application under s. 418 was entertained in circumstances where the Protected Action Ballot Orders which gave rise to the (putative) protected industrial action were under challenge by Appeal before a Full Bench of FWA.
[12] In effect, an application taken under s.418 seeking to stop industrial action in circumstances where there are pending Appeal proceedings which challenge the Protected Action Ballot Orders upon which the industrial action is authorised, would, if it was successful, have the practical effect of providing for a stay to the Full Bench determination of the Appeals. Such a stay would be something that the legislation at subsection 606 (3) of the Act, clearly seeks to avoid.
[13] Consequently I believe that the application made in this matter would, if successful, defeat the unambiguous intention of subsection 606 (3) of the Act. Therefore the application should not be further entertained.
[14] Unless and until the Protected Action Ballot Orders made by Harrison DP are overturned the industrial action that is authorised by those Orders and which is taken in accordance with the Act, is prima facie protected industrial action and therefore cannot be subject of an Order made under s.418 of the Act.
[15] For the reasons that are set out above the application in this matter is dismissed and proceedings are adjourned accordingly.
COMMISSIONER
Appearances:
Mr M. Moir (Counsel) and Mr S. Kelleher (AIG) for the Applicant.
Ms Z. Angus (AWU), Mr M. De Carne (AWU) and Mr J. Kennedy (AMWU) for the Respondents.
Hearing details:
Friday, 14 January 2011
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